What happens to my kids if I die?
Whether you’re a parent of teens, or have recently welcomed a new baby into your life, chances are you’ve asked yourself this question: What happens if I died?
This question can be especially loaded if you’re a single parent.
Don’t you want to do everything possible to make sure you take care of them?
Rather than leaving the decision up to the courts, here’s what you need to know about what happens to the child when a parent dies.
What happens when one parent dies?
When a parent dies, what happens to your child depends on a few factors:
- Whether you’re married to the other parent
- The custody arrangements if you’re divorced or were never married to the other parent, and
- If you have a will
If the legal mother and father are married to each other, this question is easy to answer: When one parent passes on, the surviving parent always gets custody.
But what if you’re not married?
According to the U.S. Census Bureau, 27% of kids live with single parents. Where your children are placed should you die depends on your legal rights as a father or as a mother.
When thinking about what happens if you’re divorced and die without a will, these questions may come up:
- If a mother dies, does the father automatically get custody?
- If a father dies, does the mother automatically get custody?
If the other parent is at all involved in the child’s life, and there is a custody and visitation schedule in place, chances are good the child will live full-time with the child’s surviving parent.
If the parent with sole custody dies, the court will decide whether to place your kids with the non-custodial parent based on what is best for the children. Grandparents can get custody over the father or mother if one or the other isn’t a reasonable choice, but the child is most often placed with the surviving parent when the custodial parent dies.
What happens when both parents die?
Having a situation where both parents depart this life at the same time is rare, but it’s a good example of why every parent needs to have a will. Otherwise, you have no say in who cares for your child because the decision rests with the court.
If this happens, the first thing you need to know is that child custody only applies to parents.
When another adult — such as a grandparent, friend, or another relative — is given the responsibility to care for your child, custody goes out the window. Instead, the court will appoint them as the legal guardian of your child.
Definition legal guardian
A legal guardian is a someone appointed by the court with legal authority and responsibility to care for a child. This person may also be responsible for the child’s legal and financial affairs, but not necessarily.
In some cases, especially if there is a large sum of money from an inheritance or life insurance policy, a conservator is is appointed by a judge to manage the financial affairs of a child. This person may also be the legal guardian, but can also be a second person.
To have some control over in who gets guardianship and conservatorship, a will or a living trust in place is critical. You might see it as complicated and expensive, but companies like LegalZoom can get you set up with the documents you need for an affordable price.
Wealthysinglemommy founder Emma Johnson uses LegalZoom’s Living Trust bundle, which includes documents for power of attorney, living trust, a living will — plus one year free, unlimited attorney advice and review.
But before you whip out your credit card to place an order, you need to know what a few terms actually mean.
What is a will?
A will is short for last will and testament, which is a legal document that details how you want your property to be distributed when you die. A will is also the formal documentation that lets you express the preferred guardian of your children.
According to LegalZoom, the information in your will supersedes any other document provided it has been executed wholly and correctly.
What is a living trust?
A living trust is a written legal document that places your assets in a trust for the purpose of protecting them during your life and after you pass on. The main advantage of a trust is being able to distribute your possessions after you die without going through probate court.
At this point, you’re probably wondering about the main differences between a will or a living trust.
Living trusts guide the way your assets are distributed upon your death, and they do so without the need for probate court. Having a will only, on the other hand, does not help your heirs avoid probate court. While probate court mainly exists to ensure your debts are paid and your assets are distributed fairly, there are a few things that can go wrong. For example, the probate court can decide your will is invalid. Also, it’s possible someone could contest the contents of your will, which means your assets may or may not wind up where you wanted them to be.
Now that you’re familiar with these documents, you’ll want to ask yourself do I need a will or living trust?
While you might think it doesn’t matter, you might not get what you want unless you have a will because laws in each state determine what happens to your children and your stuff. This means that, without a will or living trust, you won’t have any say over who gets custody of your kids, your family heirlooms, jewelry, baseball card collection, or anything else after you check out of this life.
What is an advance directive?
If you find yourself in a coma or unable to speak, your loved ones and the medical staff won’t know whether you want life support or to be resuscitated. Having an advance directive can communicate your wishes and appoint someone to be your medical power of attorney to make decisions on your behalf.
What is an advance directive vs. a living will? A living will is part of your advance directive which describes the types of healthcare you want to receive if you can’t speak for yourself.
How to make a will for child custody
As you can see, having a will is an important part of being a parent. However, the next question is: “How much does a will cost, and how do you make one?”
Hiring an attorney can be reasonably affordable if your case is very simple, with few assets or complications. Expect to pay $1,000 to $2,000 for this type of service.
If you have considerable assets, including multiple homes, many brokerage accounts, business holdings, then you will want to hire an estate attorney to help.
Likewise, if you have a complicated relationship with your child's other parent who does not have equal legal custody, you have a special needs child who requires special considerations, or you are responsible for a disabled or aged loved one, a skill attorney is worth the investment.
For everyone else, making a will online is very easy and fast, and can cost as little as $149 if using an online legal service like LegalZoom.
If you’re at least 18 years old, are of sound mind, and have a couple of people who can sign as witnesses, you’re off to a good start.
A few essentials you’ll want to include if you’re creating your own will include:
- Naming someone you trust as executor who will carry out the terms of your will
- The debts and taxes your estate could owe after your death
- The assets you own such as real estate, vehicles, bank accounts, and personal belongings
- The full names, birth dates, and Social Security numbers of the beneficiaries you want to receive those items
- Naming a person to take care of your kids if you and the other parent both pass away (nominating someone as a second choice is a good idea, too)
- If you have a pet, thinking about who could care for them after you’re gone
Although thinking about your own death and who could care for your children is uncomfortable, nominating someone in your will to fill that role will take a big weight off your shoulders. Plus, because you picked the person, you’ll have peace of mind knowing someone you trust is caring for your kids.
Once you have your will, be sure to have it officially notarized, keep it safe by making copies and finding a fireproof lockbox, bank deposit box, or filing cabinet to store them in. Also, keep a copy with your attorney, or a trusted friend (the executor of your estate is a good choice) — as well as store it on the cloud, and give access to a trusted friend.
Also, remember that life is always changing, and you’ll want to review and update your will if there’s a divorce, change of financial circumstances (you lost your house or business), a child turns 18 or graduates from college, or a new grandchild is born.
Where to keep a will
The critical part to remember is that a will is a legal document that must meet specific standards. Every state has different laws about how to make a will, and yours won’t be valid if it doesn’t meet your own state’s legal requirements. There are a few main standards to follow, however. For example, your will needs to follow a universally accepted format and it needs a valid signature. A valid will should also be executed by someone who has “testamentary capacity” as well, although each state has its own guidelines in terms of what exactly constitutes sound mind.
Your will should always be in writing, and it should involve more than jotting down a few lines on the back of an envelope. While some states would allow it, getting the court to recognize something that informal can complicate the entire process.
Also, make sure your signature and the signatures of two witnesses are on the last page. Having your will notarized isn’t a requirement in every state, but it’s a good idea and can speed up the court process after you pass away.
Finally, if you’re in a position of wanting to write someone out of getting any inheritance, you must specifically include that in writing in your will. Otherwise, that person could argue that you forgot to include them and they might even end up with a portion of your estate.
But creating a will by yourself is possible with the right forms, and using LegalZoom’s templates and examples of wills is an excellent way to make sure you’re getting spot-on legal advice. Plus, you’ll save yourself some cash by not having to pay colossal lawyer fees to draw up your documents.
What if there are complications?
Life is complicated and child custody issues aren’t always as cut and dry as you’d like them to be. In messy custody situations, you may not like the idea of your children being placed with the other parent if you die while they’re still young.
What if you have a child with special needs?
In these situations, an attorney specializing in special needs families is important. If you’ve never worked with an attorney before, finding one who is trustworthy is always a concern. You could always check Yelp reviews or Avvo, but the best approach is talking with family, friends or other professionals like an accountant or financial planner to get a recommendation.
As for how much you’ll pay, attorney’s fees vary across the board. After talking to a few legal offices, you’ll notice that costs tend to fall into two rate structures, either hourly or a flat-rate retainer fee. However, some attorneys use a combination of the two methods and require a retainer payment upfront plus an hourly rate after that money runs out.
The bottom line: If you feel you need professional legal advice, you can pay for help. Personalized legal advice can give you peace of mind and help make sure your estate is preserved when you die.
How to set up guardianship in case of death
If the children are still minors when you pass on, establishing guardianship can be done one of two ways — with or without a will.
Setting up a guardianship with a will
With a will, you’ll have the satisfaction of knowing the court will follow your wishes unless your request is impractical, or the person doesn’t want the responsibility of caring for your children.
Ideally, you can establish guardianship for your kids is to work with the other parent and pick a person the two of you can agree on. This way, you both nominate the same person in your wills and the court can appoint a guardian with no trouble if you both die.
Whoever you chose to serve as guardian should have a copy of your will, and they can bring the document to the probate court when the time comes. Some states require the nominated guardian to fill out an application or petition before they’ll grant guardianship, and they’ll likely have to pay a filing fee, too.
Setting up guardianship without a will
When parents die without a will, the court can still appoint a guardian, although this isn’t the best situation since the courts won’t have any idea what your wishes are.
But someone needs to care for your kids, and the court should have legal guardianship forms available to fill out in case of your death.
In most jurisdictions, anyone with an interest in the minor’s care can fill out this form to request appointment as guardian, including a sibling if they’re at least 18 years old and can provide a stable home environment.
However, the courts will decide who gets guardianship of your minor children, and often look to grandparents, other relatives, or friends of the family to fill the role.
In the unfortunate event that a suitable person can’t be found, or if one isn’t willing to serve as guardian, foster care might be the only option and your child could end up as a ward of the state.
What will happen to your kids?
While making a will might feel overwhelming, it’s the most fundamental legal document for child custody if the parents die. LegalZoom has guardianship forms that can become part of your estate plan, making the process go much smoother.
Instead of leaving their well-being hanging in the balance, you’ll feel better knowing you helped choose who has custody of your kids if you pass away while they’re still young.
When is DIY LegalZoom a good option?
Taking a DIY approach to making a will, living trust, advance directive, or other legal matters is mostly a matter of personal preference. If your situation is especially complicated or if you have a large amount of assets, working with an attorney might be a better approach.
But when you use LegalZoom’s online forms, you can be sure they meet all the legal requirements of your state. The easy-to-answer questions walk you through each form to help you complete it the right way. And since cost is a common reason people put off making a will, LegalZoom can help you get the legal documents you need without breaking the bank.
Emma Johnson is a veteran money journalist, noted blogger, bestselling author and an host of the award-winning podcast, Like a Mother with Emma Johnson. A former Associated Press Financial Wire reporter and MSN Money columnist, Emma has written for the New York Times, Wall Street Journal, Forbes, Glamour, Oprah.com, U.S. News, Parenting, USA Today and others. Her #1 bestseller, The Kickass Single Mom (Penguin), was named to the New York Post's ‘Must Read” list.
Emma regularly comments on issues of modern families, gender equality, divorce, sex and motherhood for outlets like CNN, Headline News, New York Times, Wall Street Journal, Fox & Friends, CNBC, NPR, TIME, MONEY, O, The Oprah Magazine and The Doctors. She was named Parents magazine’s “Best of the Web,” “Top 15 Personal Finance Podcasts” by U.S. News, and a “Most Eligible New Yorker” by New York Observer.
A popular speaker, Emma presented at the United Nations Summit for Gender Equality. Read more about Emma here.